Criminal Lawyer Blog

False confessions common cause of wrongful convictions

We would like to think our criminal justice system is infallible. Unfortunately, it is not. In a system built on the Blackstone principle that we would rather see 10 guilty defendants go free than one innocent person convicted, wrongful convictions continue to occur. In Canada, the names David Milgaard, Kyle Unger, Romeo Phillion, to name a few, are synonymous with the tragedy of justice gone awry.

Causes of this phenomenon are widespread. No party to the process can claim immunity from the problem. Among the legal participants, often cited causes are tunnel vision or misconduct on the part of police and prosecutors, ineffective assistance of defence counsel, and judicial error such as allowing questionable evidence or giving poor jury instructions. External factors include charlatan “experts,” junk science, faulty eyewitness testimony and unreliable witnesses.

One common cause of wrongful conviction is particularly troubling — false confessions. The layperson looking in on one of these cases invariably asks: Unless it were true, who would confess to something they did not do, let alone to a crime that carries a life sentence? Can such a detailed confession, so true to the facts of the crime, be false?

Rationalizations like these are alluring for their simplicity and appeal to “common sense” — unfortunately they compound the problem and make it extremely difficult to unravel the conviction.

The first response to these “common sense” arguments is that false confessions do happen. This year, the Innocence Network, an association of organizations primarily in the United States with affiliates around the world, including three in Canada, announced its 300th DNA-based exoneration, most of them through the Innocence Project in New York. In 27 per cent of these 300 exonerations, a false confession or admission had contributed to the wrongful conviction. It begs the question of how many more are out there that cannot be proved false by irrefutable evidence, such as DNA.

Another response is to attack the “common sense” idea that people do not falsely confess to crimes. The justice system is resistant to this and for good reason: the confession is the most powerful piece of evidence that can enter a trial. A confession is damning to a trier of fact; any attempt to chip away at the clarity it brings to criminal litigation will be met with obvious resistance.

The battle against false confessions is similar to the battle to prevent faulty eyewitness identifications, except for the fact it is still at the frontier stages in comparison.

To understand the phenomenon of a false confession, we need to appreciate the type of pressure that a person in a police interview faces that the average observer cannot comprehend. From the known cases, we can extract various circumstances and behaviours that exacerbate or give rise to false confessions, including: coercion, undue influence and promises, impairment by drugs or alcohol, diminished capacity, desire for notoriety, physical violence and threats, fear of consequences and denial of right to counsel.

The process of effecting change to prevent false confessions can only begin with education. The visceral reaction to hearing a confession is to accept that it must be true. This response needs to be replaced by an intuitive reply that questions it and asks what caused that confession to happen? The focus must be on the situational forces that led to the confession, rather than on the assumption that the person must be guilty and therefore spoke honestly. How would an innocent person facing probing and relentless interrogation react to the situation? Is it possible that falsely confessing just to free oneself from the ordeal is one response? Given the empirical data that 27 per cent of DNA exonerations involved false confessions — a fact that cannot be ignored — the answer must be yes.

Why do we instinctively look askance at the suggestion that a confession might be false? The answer may lie in a well known social psychological concept: People tend to overrate the value of dispositional explanations for behaviour over situational factors. It is easier to blame someone’s personal actions or disposition rather than look at the surrounding factors for the explanation. Much like the vice-president who automatically concludes that the manager is lazy or inept (dispositional factors) for not completing the report on time rather than looking at the extent of his/her workload (situational factors), the layperson simply concludes that the defendant was obviously guilty (dispositional ) while wholly discounting the effects of the interrogation process, undue pressure, etc. (situational).

False confessions are a complex and controversial source of wrongful conviction. Preventing them requires awareness and acceptance of the root causes.